FAIR USE: TRANSFIXED ON TRANSFORMATION

MUSIC & ART - RICHARD PRINCE AND GREEN DAY CASES

While the United States Supreme Court was denying certiorari on the controversial Second Circuit decision that appropriation artist Richard Prince fairly used photographs by Patrick Cariou, the Ninth Circuit was busy evaluating rock band Green Day's defense of fair use to a copyright infringement suit filed by Los Angeles artist Derek Seltzer. http://cdn.ca9.uscourts.gov/datastore/opinions/2013/08/07/11-56573.pdf

The appellate court agreed that Seltzer's drawing, Scream Icon, was used up front and center in a 4 minute video back drop for the band's performance of the cut "East Jesus Nowhere." Scream was on screen through the entire play of the song at 70 touring performances and the MTV Video Music Awards.

A SONG WITH JESUS IN THE TITLE AND A SPRAY OF PAINT ON THE COPYRIGHTED IMAGE

No matter that Scream was dominant, prominent, centered, and enduring in the video. The unauthorized use was fair because the defendants' transferred it from street art poster to "street-art...music video about religion and...Christianity..." by singing a song with "Jesus" in the title and spraying a red cross across Seltzer's stylized image. Transformative--according to the court, and fair use. [read more on fair use and art copyright ]

Such is the power of transformation in current copyright cases that Christ himself might take lessons from the judiciary on the transformative properties of wine and water. So what 2D image isn't transformative under such analysis when re-contextualized? Okay, so the band did not plaster Scream on mass-marketed merchandise, but how does it further the purposes of copyright to deprive the creator of the underlying work a fair price for its use?

CHRIST HIMSELF MIGHT TAKE LESSONS FROM THE JUDICIARY ON THE TRANSFORMATIVE PROPERTIES OF WINE AND WATER

Copyright law establishes the derivative right to protect creators for this very purpose. In short, derivation is the currency of the licensing markets. And licensing is the heartbeat, an important revenue source, for the majority of artists who aren't part of the high-revenue auction and gallery system. Ask yourself who would now pay Seltzer or Cariou a licensing fee? Copyright law is intended to enable all creators to license and exploit revenue from their works, not just the powerful, the famous or the ones buttressed with teams of lawyers.

The judicial road song "everything's coming up transformation" leads to results like those in the Prince and Green Day cases: a free feed from the minds of the creators to the grander amplifier of the appropriators.

The problem is not solely with the judiciary but with the formulation and application of the fair use rule-a non-exhaustive calculus of factors that courts have attempted to parse with a semblance of scientific inquiry reserved for the Higgs Bosun. Bets that any tenth grader facile on a device [and what 10th grader isn't?] could "transform" any copyrighted image into fair use with a few dexterous strokes.

Content and Compilation Copyright: Art Law Firm. 2014

Brian Wall
New Works in the East Bay Studio
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VICIOUS USE: FAIR USE AND APPROPRIATION--THE SEQUEL

THE MANY POSES OF SID VICIOUS

And if fair use is not befuddling enough to artists, musicians, copyright holders and copyright lawyers, another district court in California has weighed in [pardon the fair use pun] on artist Thierry Guetta appropriating Dennis Morris' photograph of Sex Pistols bassist Sid Vicious in the signature pose, published in a book. Guetta admitted appropriating Morris' Vicious in 7 works, but defended the appropriation as fair use. Prince case, the sequel?

The ultimate conclusion on summary judgment in this unpublished opinion is that the use was not fair, but courts are divided on where the line between unlicensed piracy and legitimate fair use is being [pardon the derivative pun] "recast", Who will benefit from the derivative rights on that?

APPROPRIATION AS JUSTIFIED FAIR USE IF THE "MATERIAL SERVED THE [APPROPRIATOR'S] OBJECTIVE BEYOND MERELY SAVING HIM TIME OR EFFORT...."

The court did not find the work commented or changed the Vicious photo in a manner sufficient for transformative use, a single but not determinative criterion, and examined whether use could be justified. Finding the use unjustified under first factor analysis, the language of the opinion, reprising Supreme Court analysis of parody and satire, nonetheless seems to boost appropriation as status quo, even while rejecting the per se rule. An artist "is not required to comprise...artistic vision [by not appropriating] merely because the artist could have made a similar statement in a non-infringing way." Appropriation is okay if the copyrighted "material served the [appropriator's] objective beyond merely saving the artist time or effort...." Bets the tenth grader could come up with lots of reasons.

Content and Compilation Copyright: Art Law Firm. 2014

A PROACTIVE APPROACH TO ESTATE PLANNING: FOUNDATIONS, PRESENT VALUE AND FUTURE LEGACY

MANAGING THE ART PORTFOLIO

The estate plan for the art, antiques and furnishings portion of the investment portfolio is often overlooked or inadequately administered during the lifetime of the testator and afterward. Today's art estate asset management requires understanding the increasing values of art, antiques and decorative arts in the market place, the complexity of intellectual property rights in artworks, especially copyright and licensing revenues, potential repatriation claims in antiquities and restitution claims in Nazi or global war or conflict-sourced objects, and conserving art assets in accordance with industry standards to sustain market value and protect the integrity of the objects. The Art Law Firm counsels clients on forming foundations appropriate for the artist, estate or collector, and has teams of conservators, appraisers and estate specialists coordinating strategic and tax planning. Read More

Content and Compilation Copyright: Art Law Firm. 2014

CARVE OUT: ART TIME IN SAN FRANCISCO

Big, bigger and best highlighted an eventful week in San Francisco when Alexandra Darraby scoped out the comprehensive, must-see David Hockney exhibition, titled "David Hockney: A Bigger Exhibition," Staged on two floors of the DeYoung Museum, the exhibition can be experienced throughout the catalogue.

Between meetings of the Executive Committee of the California State Bar Association International Section's, Darraby met British-born sculptor Brian Wall, collected by the Tate BRITAIN, to learn about upcoming plans for exhibitions of his works. Wall and Hockney were both lads in London, having adventures on the then-exploding British art scene. Stay tuned for updates when Darraby visits Wall's studio in the East Bay next month.

During this Bay Area blitz, Darraby managed to interview award winning architect Joshua Aidlin of Aidlin Darling Design, an honored 2013 recipient of the Smithsonian Cooper-Hewitt National Design Award. The design firm graciously accepted Darraby's invitation to highlight its "Site and Senses: The Architecture of Aidlin Darling Design" at the Sonoma Valley Museum of Art (Dec. 20, 2013 to Mar. 2, 2014) to a Board of Directors in March, where all will enjoy some after-hours R & R.

Content and Compilation Copyright: Art Law Firm. 2014

NEW YEAR: MORE NEW ALF STAFFING!

The New Year brings more talent to the Art Law Firm. Dana Nichols shares her journalistic skill set as the new Administrative Coordinator to manage the Art Law Firm blog and the firm's web and digital presence. Dana will assist on promotion and communications for the Art Law Firm's growing client base of foundations and nonprofit organizations, as well as facilitate ALF's new Buenos Aires project (stay tuned!) Judi Wheeler, with more than 20 years of financial experience with boutique businesses in southern California, joins Accounting. Both Judi and Dana have experience working in creative industries, and look forward to meeting clients and friends of the firm.

Content and Compilation Copyright: Art Law Firm. 2014

MEET THE ART/ARCH LAW EXPERTS APRIL 7, 2014:
"THE ABC'S OF ART LAWYERING."

The American Bar Association Center for Professional Development's extensive and enlightening programming this spring features the April 7, 2014 webinar "The ABC's of Art Lawyering." LeAnn Shelton, Architect and General Counsel of New York's award-winning 140-person architecture firm Rockwell Group, will be matched with lawyer and lecturer, Alexandra Darraby, founder of the Art Law Firm, and author of ART ARTIFACT ARCHITECTURE & MUSEUM LAW. The duo will present an online conversation discussing their varying paths to success in the world of art law. Designed as an interactive cross-interview, participants will be able to listen and interact as Ms. Shelton and Ms. Darraby share viewpoints, how-to's and how-not-to's of their combined extensive experiences, and look forward to professional challenges that new technology and digital reliance have injected into the practice. With Ms. Shelton's recognized extensive background in architecture as a practicing architect, and as in-house counsel - and Ms. Darraby's experience as a gallerist of contemporary art, a dealer, collector and a private practitioner, there will be no shortage of conversation topics as they engage in the interplay of state and federal laws in the art world, challenges of art law in the digital era, qualifications, fields of law, client relations in creative practice, and more. For information on tuning in to the webinar on April 7, visit abacle.org.

Content and Compilation Copyright: Art Law Firm. 2014

TOP CELEBRITY BRANDS GO GLOBAL! COPYRIGHT AND PUBLICITY RIGHTS HOW-TO PANEL SWEEPS SOUTHERN FLORIDA

The "How-to" of controlling global celebrity brands will be the topic of discussion May 1-2, 2014 at the Fifth Annual International Legal Symposium on the World of Music, Film, Television and Sports, a yearly opportunity for the world's leaders in entertainment law to exchange ideas. The event is hosted at the historic Palms Hotel & Spa in Miami Beach, Florida. Experts from Mexico, Canada and the United States postulate and educate on hot topics in entertainment, including strategy, start-ups, implementation and enforcement, offered on more than a dozen panels sponsored by the ABA.

The ABA Forum on Entertainment locked down Alexandra Darraby, International Division Chair, to moderate CELEBRITY BRANDS GOING GLOBAL, asking her to reprise a successful London program on which she presented new opinions from the Ninth Circuit on celebrity icons, video games and sports icons, involving Electronic Arts, Jim Brown, and NCAA. The 2014 CELEBRITY BRANDS panel aka "Creating, Licensing and Controlling Global Entertainment Brands in Sports, Music, Theater and the Arts: 'The Litigators and Transactional Lawyers Should be Friends...," features James Schnare, General Counsel of Nicklaus Companies, LLC, Jeff Brabec, Vice President of Business Affairs of BMG Chrysalis, and others. WESTLAW new 17th edition of ART ARTIFACT ARCHITECTURE AND MUSEUM LAW just published a newly expanded chapter on PUBLICITY RIGHTS. ART ARTIFACT ARCHITECTURE AND MUSEUM LAW.

Content and Compilation Copyright: Art Law Firm. 2014

HOLLYWOOD COMES TO BUENOS AIRES

The Art Law Firm congratulates the International Division of the Forum and its Founding Chair, Alexandra Darraby, on the selection of a Forum co-sponsored entertainment program at the ABA International Annual Meeting in Buenos Aires in October 2014. Titled Global Distribution of Entertainment Content in the Digital Era: Rights, Action, Roll "em! the panel features Richard Idell, founder of Idell & Seitel, San Francisco, Pablo Crescimbeni, partner at Curutchet-Odriozola, in Argentina, and moderator Alexandra Darraby, principal of the Art Law Firm, Liaison to the International Section. The winning proposal was pitched to combine globalism with the drama and broad audience appeal in South America of sports and entertainment. This co-sponsorship furthers the bonds between the Forum and the International Section, which jointly sponsored the ABA Annual Meeting program, Nazi Holocaust Art: Global Strategies for Misplaced Masterpieces in August 2013.

Content and Compilation Copyright: Art Law Firm. 2014